8th Amendment to the constitution

aloyisious

Could this case have an end result of bolstering the 8th amendment in the constitution, in so far as it's using the amendment to further the situation where a precedent may be set in Irish jurisprudence of having the demise of a feotus in the womb prior to birth declared as equal in law to the death of a human after birth - contrary to the situation which exists in ordinary statute law at the moment.http://www.independent.ie/irish-news/courts/husband-sues-state-as-his-unborn-child-dies-in-crash-34425642.html

Absolam

Does jurisprudence bolster a Constitutional provision? If an element of the Constitution cannot be diminished by legislation, how can jurisprudence bolster one? The Constitutional element will continue to have the same degree of scope as it always had, surely?

EDIT: Not sure if this is a case 'currently before the courts' and foul of the charter, since it's not currently being heard afaik, so happy to have some direction in that regard?

recedite

8th amendment relates to the rights of the "unborn", whereas according to the article the person involved was "born" and therefore the case would have no bearing on the 8th.

Mr Morris said that it was his understanding in this case the unborn child was "born" and that it would be within his jurisdiction to assign the status on her that she had therefore died

I'd be inclined to just take that at face value, rather than demand to know all the gory details.

As an update, the coroner has decided to issue a death cert.

coylemj

recedite wrote: »

8th amendment relates to the rights of the "unborn", whereas according to the article the person involved was "born" and therefore the case would have no bearing on the 8th.
I'd be inclined to just take that at face value, rather than demand to know all the gory details.

The article linked to in the first post says the following....

As Mollie died in utero as the result of her mother's death, her death is considered by medical and legal experts a stillbirth.

What that says is that from a medical perspective, the child was never born. The coroner is stepping over a line in order to accede to requests from the husband to have the death of the foetus treated as the death of a separate, living person which I do not believe to be appropriate. I understand the moral pressure he is under but I believe he has no right to issue a death cert for an unborn child.

If the courts give the husband what he is looking for then the Savita Halappanavar case will be repeated in maternity hospitals up and down the country and the 8th amendment will be cast in stone. There will be no room for any manoeuvre to save the life of the mother regardless of the circumstances if there are complications in a pregnancy because the unborn will have the same legal status as a living person and all of the protection that goes with that.

volchitsa

Quote:
Originally Posted by aloyisious View Post
Is there a separate thread on the "8th Amendment" issue. The reason I'm asking is because of this court case: http://www.independent.ie/irish-news...-34425642.html
(This is the post copied over from the other thread, as requested.)

In the meantime, on this particular case, while I have huge sympathy for the family concerned, I must say I can't really see how the coroner (or the High Court) can redefine international medical definitions of when the child's legal existence begins without throwing maternity care into worse disarray than it already is.

Surely coroners' courts would be overwhelmed if all miscarriages had to be investigated to identify the cause of death? Is it even possible to do so? How many suspected murder cases would all those "unexplained cause of death" cases resulting from medical ignorance to lead to?

Or would Ireland end up at the cutting edge of fetal medicine due to having to post mortem thousands of fetuses? Could the health service cope?

I can't help thinking that the additional trauma to women suffering miscarriage would be huge.

Absolam

coylemj wrote: »

The article linked to in the first post says the following....

As Mollie died in utero as the result of her mother's death, her death is considered by medical and legal experts a stillbirth.

What that says is that from a medical perspective, the child was never born. The coroner is stepping over a line in order to accede to requests from the husband to have the death of the foetus treated as the death of a separate, living person which I do not believe to be appropriate. I understand the moral pressure he is under but I believe he has no right to issue a death cert for an unborn child.

This seems accurate to me; the article doesn't say why the Coroner said in his understanding in this case the child was "born" and it would be within his jurisdiction to assign the status on her that she had therefore died, and I think that unless there is a compelling reason (like the unborn child was delivered and then died rather that dying in utero), there's no way his decision can be sustained.

coylemj wrote: »

If the courts give the husband what he is looking for then the Savita Halappanavar case will be repeated in maternity hospitals up and down the country and the 8th amendment will be cast in stone. There will be no room for any manoeuvre to save the life of the mother regardless of the circumstances if there are complications in a pregnancy because the unborn will have the same legal status as a living person and all of the protection that goes with that.

I'm not sure it has any bearing whatsoever on cases like the Savita Halappanavar case? That her unborn child could have been issued a death cert having died in utero wouldn't have made any difference to what happened; Mr Enright isn't looking to give unborn children all of the same legal facilities as a born person, he's looking for the facility to declare them legally dead if they are killed (not that I think that's any more sensible, but it is a lot less extensive).
The 8th Amendment is already 'cast in stone', it can only be altered by a referendum. No legislation can prevent manoeuvres to save the lives of mothers which are based on Constitutional equality; such legislation would be unConstitutional and would be struck down, which is similar to what Mr Enright is trying to do; have the Civil Registration Act struck out because he believes it is unConstitutional (on six Constitutional grounds, only one of which is Article 40.3.3.).

Manach

First one would feel sympathy for the man’s lost of family.

On the substantive issue, the protection of the unborn has not usually attracted much coverage from bodies charged safeguarding of Human rights (eg Vo v France ). So a judgement which adds to judicial opinion which bolsters the understanding of how this issue of the unborn such be handled now and in the future aids to the general jurisprudence. That this then covers inadvertent and tragic circumstances as in the factual scenario, is a return to a traditional and proportinate level of protection. This is what theorists like Koewn in Bioethics termed inviolability of life which seeks to ensure that an innocent is safeguarded (which the unborn can be categorised ) i.e. “Human life is sacred, that is inviolable, so one should never aim to cause an innocent person’s death by act or omission.” and recognised of being of value.

Absolam

The notion that human life is sacred is not one that does (or should) feature in Irish law; it's a religious notion, not a legal one.

volchitsa

The coroner's decision was quoted elsewhere (sorry, no links) but it seems to have been that a stillbirth occurs at the point where the dead baby is separated from the mother, including for the autopsy. That seems fair enough to me.


However without a live birth, i.e. a legal existence, she isn't included in RTA statistics, and that is what the family want. I think they may have quite a good good case to make under Ireland's unique constitutional situation.

As I and others have said, the ramifications for Ireland's maternity services and pregnancy care would be enormous and probably disastrous. I don't see how it would be possible, with the current constitution, to grant personhood only to those fetuses which have died in certain circumstances but not in others. It would be like granting human rights only to non-redheads.

johnnyskeleton

Manach wrote: »

First one would feel sympathy for the man’s lost of family.

On the substantive issue, the protection of the unborn has not usually attracted much coverage from bodies charged safeguarding of Human rights (eg Vo v France ). So a judgement which adds to judicial opinion which bolsters the understanding of how this issue of the unborn such be handled now and in the future aids to the general jurisprudence. That this then covers inadvertent and tragic circumstances as in the factual scenario, is a return to a traditional and proportinate level of protection. This is what theorists like Koewn in Bioethics termed inviolability of life which seeks to ensure that an innocent is safeguarded (which the unborn can be categorised ) i.e. “Human life is sacred, that is inviolable, so one should never aim to cause an innocent person’s death by act or omission.” and recognised of being of value.

Isnt there a decision of Cooke J in HO v Minister for Justice where the unborn childs only right is the right to be born?

I feel a lot of sympathy for this poor guy and understand that this issue is part of the grieveing process. But as the law stands the constitution only confers a right to life on an unborn. Its only when a child is born that they acwuire personal rights.

recedite

coylemj wrote: »

The article linked to in the first post says the following....

As Mollie died in utero as the result of her mother's death, her death is considered by medical and legal experts a stillbirth.

What that says is that from a medical perspective, the child was never born. The coroner is stepping over a line in order to accede to requests from the husband ...

That is what the Indo says, yes.
In the second article from utv Ireland it says "The Coroner said in his understanding in this case Molly, was "born" and it would be within his jurisdiction to assign the status on her that she had therefore died."

So, two different scenarios reported, with different legal implications.

volchitsa

No, I think that's just a bit of journalistic carelessness : my reading of the coroner's judgment is that she was "born" as a "stillbirth", i.e. has a legal death certificate but since she never lived outside the womb she has no birth certificate, which requires having been born alive. At the moment.

A still birth is a birth, so that both articles say the same thing, but neither very clearly.

The family want a birth certificate so that she can be considered as a person who died in a RTA. What they want is for birth, alive or dead, not to be the instant at which a person comes into existence, but (presumably) either fertilization or implantation, as per the constitution and related legislation.

Absolam

volchitsa wrote: »

The coroner's decision was quoted elsewhere (sorry, no links) but it seems to have been that a stillbirth occurs at the point where the dead baby is separated from the mother, including for the autopsy. That seems fair enough to me.

Actually he (supposedly) said that a birth occurs at the point where the baby is separated from the dead mother "He said he was satisfied the separation of the unborn child from the mother, during an autopsy, can be deemed a birth under the relevant legislation. "So it is my belief that I could issue such an instruction," he added.". It seems to me that that can only be the case if there is some sign of life, even for seconds, from the child when separated from the mother, but there is no indication (either way) whether there was any sign of life; all we know is the jury in the coroners court "agreed that Mollie had died at University Hospital Waterford due to a lack of oxygen following her mother's death."

volchitsa wrote: »

However without a live birth, i.e. a legal existence, she isn't included in RTA statistics, and that is what the family want. I think they may have quite a good good case to make under Ireland's unique constitutional situation.

Well... she did have a legal existence. She was an 'unborn' with the right to life per the Constitution and the POLDPA. Her legal existence simply may not have extended to having been legally born, therefore could not go on to extend to legally dying. Without knowing which other five Constitutional provisions Mr Enright is relying on it's pretty hard to tell if he can make a good case or not; certainly it seems 40.3.3 alone wouldn't cut it.

volchitsa wrote: »

As I and others have said, the ramifications for Ireland's maternity services and pregnancy care would be enormous and probably disastrous. I don't see how it would be possible, with the current constitution, to grant personhood only to those fetuses which have died in certain circumstances but not in others. It would be like granting human rights only to non-redheads.

Personhood, of course, is not actually defined in Irish law, so setting out to decide how or when to confer it on anyone (including those who are already born) would be something of an unnecessary feat I suspect. We know a foetus has a right to life which is included under Personal Rights in the Constitution, so, at least in that regard, Ireland already confers personhood before birth... do we really need to add anything to that? Ireland's maternity services already have the same obligations relating to registration of stillbirths as they do to births, so there's no real additional burden in recognising the existence of cases like Molly; the meat of the issue really is to include stillbirths that result from road traffic accidents in RTA statistics. Which has nothing at all to do with maternity services, personhood, or the Constitution, and all to do with the Road Safety Authority reporting system.

Absolam

volchitsa wrote: »

The family want a birth certificate so that she can be considered as a person who died in a RTA. What they want is for birth, alive or dead, not to be the instant at which a person comes into existence, but (presumably) either fertilization or implantation, as per the constitution and related legislation.

I think you're reading a little more into what they want than they are to be honest.
RTA statistics for deaths in road traffic accidents require a death certificate; personhood doesn't come into it, but the argument is that to have a death certificate one must have a birth certificate.
I don't think Mr Enright cares whether birth, alive or dead, is not the instant at which a person comes into existence ( a fairly nebulous concept!) , or fertilization, or implantation. If a stillborn certificate allowed a certificate of death to be issued, allowing his daughter to be included as a Road Traffic Death statistic, I suspect he'd be satisfied. He appears to want a recognition of the loss of his daughter, not a redefinition of what it is to be a person in Ireland.

volchitsa

Absolam wrote: »

I think you're reading a little more into what they want than they are to be honest.
RTA statistics for deaths in road traffic accidents require a death certificate; personhood doesn't come into it, but the argument is that to have a death certificate one must have a birth certificate.
I don't think Mr Enright cares whether birth, alive or dead, is not the instant at which a person comes into existence ( a fairly nebulous concept!) , or fertilization, or implantation. If a stillborn certificate allowed a certificate of death to be issued, allowing his daughter to be included as a Road Traffic Death statistic, I suspect he'd be satisfied. He appears to want a recognition of the loss of his daughter, not a redefinition of what it is to be a person in Ireland.

I never said he was trying to any of those things, I said there would be all sorts of ramifications from such a decision. It doesn't matter that Mr Enright would be satisfied with a ruling concerning his daughter and no other fetus, that isn't how the law works.

Such a ruling would change the medical status of the fetus in maternity care. That's inevitable and has been pointed out by Peter Boylan and other obstetricians.


BTW, as I said just now, I was posting from memory on what the coroner had said, so there were inaccuracies about death certs etc, but the point I was making was that the word birth does not have to mean a live birth. It can also be a stillbirth. However IMUIC, a birth certificate, currently, is only issued for live births.

Absolam

volchitsa wrote: »

I never said he was trying to any of those things, I said there would be all sorts of ramifications from such a decision. It doesn't matter that Mr Enright would be satisfied with a ruling concerning his daughter and no other fetus, that isn't how the law works.

Which things? You said "The family want a birth certificate so that she can be considered as a person who died in a RTA". That's not the case; they're not making any representatings regarding the notion that she can be considered a person. Such a decision depends on what such a decision might be; you haven't really told us what you think that is, other than that Molly would be considered a person, or that Molly would have a legal existance. We already know that Molly had a legal existence, so hardly that. We know that Irish law doesn't set out what a person is, so such a decision is not likely to add her to a definition that isn't there. Obviously neither qualifies one to be a RTA statistic, so they don't seem terribly likely to be a decision Mr Enright is seeking, do they?

volchitsa wrote: »

Such a ruling would change the medical status of the fetus in maternity care. That's inevitable and has been pointed out by Peter Boylan and other obstetricians.

That really depends on what you think 'such a ruling' is; you haven't said. Peter Boylan said there would be absolute chaos if you start meddling with the definition of a stillborn baby, not that a ruling (especially when we don't know what ruling you're talking about) would change the medical status of a foetus in medical care. I can't imagine how, for instance, a ruling that a stillborn certificate permits a stillborn to be recorded as a death resulting from a road traffic accident would have any impact at all on the medical status of a foetus in care. Can you?

volchitsa wrote: »

BTW, as I said just now, I was posting from memory on what the coroner had said, so there were inaccuracies about death certs etc, but the point I was making was that the word birth does not have to mean a live birth. It can also be a stillbirth. However IMUIC, a birth certificate, currently, is only issued for live births.

Certainly, a birth may include a stillbirth, and different certs are issued for live births and still births. And as I said, if a stillborn certificate allowed a certificate of death to be issued, allowing his daughter to be included as a Road Traffic Death statistic, I suspect Mr Enright would be satisfied, without any need to exercise your concerns for enormous and disastrous ramifications for Ireland's maternity services and pregnancy care... unfounded as they might be.

Victor

volchitsa wrote: »

BTW, as I said just now, I was posting from memory on what the coroner had said, so there were inaccuracies about death certs etc, but the point I was making was that the word birth does not have to mean a live birth. It can also be a stillbirth. However IMUIC, a birth certificate, currently, is only issued for live births.

Note that stillbirths do have a registration system: http://www.citizensinformation.ie/en/birth_family_relationships/miscarriage_and_stillbirth/registering_stillbirth.html

recedite

Whats the story with the blood alcohol test results from the other driver?

"The findings from the blood sample were 913mg of alcohol per 100ml of blood… but it would not be possible to consume that much alcohol," he said.

"Anything over 400mg would lead to death."

Has the test machine gone haywire, or did somebody pour vodka into the sample after it was taken?
I'm surprised they just dismissed it as "no big deal". What other cases were tested at the same lab?

recedite

Article about "Zoe's Law" in Australia, with related issues.
AFAIK the bill got halfway through the parliament, and was then aborted.

coylemj

recedite wrote: »

Whats the story with the blood alcohol test results from the other driver?
Has the test machine gone haywire, or did somebody pour vodka into the sample after it was taken?
I'm surprised they just dismissed it as "no big deal". What other cases were tested at the same lab?

+1 Either the lab equipment was defective or the sample was nobbled. Michelle de Bruin and the urine sample that miraculously morphed into pure whiskey comes to mind.

Victor

recedite wrote: »

What other cases were tested at the same lab?

I get the impression they are all tested in the same lab.

Robbo

Case dropped, without ever going beyond papers being issued in 2014.